W. H. McDonald et al. v. W. P. Hamblen, Administrator, 78 Tex. 628

HOBBT, Judge. —This suit was brought by W. P. Hamblen, as administrator of the estate of Samuel Stevenson, against W. H. McDonald, Frank Files, and R. P. Bdrington, to try the title to 984 acres of the George A. Campbell one-third of a league of land. The defendants pleaded not guilty and the five years statute of limitation. The plaintiff’s chain of title was as follows: Patent to Jacob De Cordova, assignee of George A. Campbell, for the one-third of a league, dated July 7, 1848; deed from De Cordova to Simon W. Kellogg, conveying the said one-third of a league as described in the patent, dated July 17,1848.

It was proved that Simon Kellogg died February 10,1856, leaving an independent will appointing his wife Caroline Kellogg, his son Francis Kellogg, and Henry T. Tiebout, his son-in-law, his executors. By the terms of the will full power was given them to make settlement of his estate, having in view its interest. After the discharge of his debts the residue of his estate was to be distributed as therein set forth. To his son Francis Kellogg his interest in the headright of George A. Campbell, on Richland Creek, was devised.

This will was probated in Robertson County, and on the 25th of February, 1856, all three of the executors named in the will qualified. Francis Kellogg, one of the executors, died on the 28th of February, 1863. On the 15th of May, 1866, the remaining executors, Caroline E. Kellogg and Henry Tiebout, joined in the execution of a deed to Peter W. Gray, executor of the estate of James H. Stevens, deceased, conveying land described as follows: “A tract of 984 acres, part of one-third league patented to Jacob De Cordova, assignee of George A.

Campbell, on the 7th day of July, 1848, by the State of Texas, situated on Richland Creek in Navarro County, described by said patent issued on the day and date named and a deed from said De Cordova to Simon Kellogg, July 17,1848.” Simon W. Kellogg and Caroline E, Kellogg were married in 1831 or 1832, and the property owned by him at his death was community property. Peter W. Gray, Caroline Ennis, and Wm. MeOraven were coexecutors of the will of Jas. H. Stevens, deceased, either two of whom were under provision of the will authorized to act in any matter. On the 21st of August, 1867, Wm. MeOraven and Peter W.

Gray, as coexecutors of the will of Jas. H. Stevens, executed a deed to the plaintiff, Wm. P. Hamblen, administrator of the estate of Samuel Stevenson, conveying laud described as follows: “Tract of 984 acres, being two-thirds part of the one-third league patented by the State of Texas to Jacob De Cordova, assignee of Geo. A. Campbell, for his headright, on the 7th of July, 1848, situated on Richland Creek, in the county of Navarro, and particularly described in said patent and in the conveyance from said De Cordova to S. W. Kellogg, which are recorded in Navarro County and referred to for identity.” Wm.

Hamblen was duly qualified and appointed as administrator of the estate of Samuel Stevenson, and procured an order of the Probate Court authorizing him to sue for the recovery of the land in controversy. Such is the appellee’s title. The defendants offered in evidence, in support of their plea of limitation, a tax deed and the map of Hill County, to show “the locality of said Campbell survey and surrounding surveys.” These were objected to by plaintiff and they were excluded. The court thereupou instructed the jury to find for the plaintiff.

A verdict was returned in accordance with this instruction, judgment was entered thereon, and the defendants have appealed. The first error complained of is the action of the court in admitting in evidence the deed from “ Henry Tiebout and 0. E. Kellogg as a deed fro'im .0. E. Kellogg, in the capacity of surviving wife of S. W. Kellogg, to P. W. Gray, executor of the estate of J. H. Stevens, deceased, in this, that said deed upon its face shows that it was executed by Tiebout and 0. E. Kellogg as executor and executrix of S. W. Kellogg, deceased, and purports on its face to convey by virtue of the will of S. W.

Kellogg, deceased, three persons having qualified as executors.” The deed was offered as a deed executed by the executor and executrix under the will of Simon Kellogg, but it was objected to by the appellants because it was only signed by two of the executors, whereas three were appointed by the will and qualified. This objection was sustained and the deed excluded. It was then offered as a deed “executed by C. E. Kellogg, as surviving wife of Simon W. Kellogg, to the grantee for the payment of the debts against the community estate of S. W. and 0. E.

Kellogg.” To this it was objected that it did not purport to be a deed of that character. The objection was overruled, and it was admitted as a deed from th'e surviving wife as indicated above. We think the court erred in excluding the deed because the will provided for three executors, all of whom qualified, and only two of them joined in its execution. At the time of the execution of the deed, May, 1866, one of the executors had been dead three years.

It is well settled in this State that where a joint authority is given by a will to two or more persons as executors to sell and convey real estate, and one of the executors refuses to act or can not act, a conveyance made by those surviving under the authority of the will is valid; and this doctrine applies to executors charged with the execution of a will independently of the control of the Probate Court. Anderson v. Stockrdale, 62 Texas, 59; art. 3138, subdiv. 5, Rev. Stats. It is true that the deed was not admitted as a deed of this character, but this could not affect its validity as such conveyance.

Although it was admitted for'another purpose, it was a valid conveyance under the will. The next assignment is that “ the court erred in admitting in evidence the deed from Henry Tiebout and 0. E. Kellogg, executor and executrix of S. W. Kellogg, deceased, to P. W. Gray, executor of James H. Stevens, deceased, in this, that said deed upon its face conveys a tract of 984 acres, part of one-third league patented to Jacob De Cordova, assignee of George A. Campbell, said one-third league described in the patent and in deed from Jacob De Cordova to S. W.

Kellogg, said deed in nowise identifying any particular part of said one-third league and in nowise identifying the land as sued for by plaintiff.” It is shown by the evidence that this conveyance described the land as “984 acres, part of one-third league patented to Jacob De Cordova, assignee of George A. Campbell, said one-third league described in the patent and in the deed.” But De Cordova conveyed the entire survey, the one-third league, to Simon Kellogg; Kellogg’s executors conveyéd 984 acres to P. W. Gray, executor, who with William McCraven, his coexecutor, conveyed the same to plaintiff.

All of which shows that the plaintiff holds, in so far as it affects the defendants, as a tenant in common with Kellogg’s estate, in which the title remains to the balance of the survey, 493 acres. As to these defendants, the plaintiff could recover the entire survey, because he is a tenant in common with the Kellogg estate, and as such it would be immaterial whether the part of the land owned by him was identified by a particular description. It is to be observed also that the deed was not objected to on this ground when offered in evidence.

This disposes of the third and fourth assignments, as they raise in another form the same question. It is claimed that “the court erred in instructing the jury to find in favor of the plaintiff in this: The deed from Henry Tiebout and C. E. Kellogg was executed to P. W. Gray, executor of Jas. H. Stevens, deceased, ten years after the death of S. W. Kellogg, and if S. W. Kellogg was indebted to Jas. H. Stevens or his estate such indebtedness must be presumed to have been paid, and said 0. E.

Kellogg, as surviving wife of Simon Kellogg, had no legal right to convey land in payment of such debts after the lapse of ten years.” If the debts were barred which the conveyance was executed to discharge, the defendants could not in this suit avail themselves of that fact, as they are neither heirs nor creditors and have no interest in the estate. Moreover, this will was an independent will, investing the executors with ' authority to make a settlement of the estate with a view to the best interest of the estate.

They could have sold the property at any time for the payment of debts without the action of any court. Howard v. Johnson, 69 Texas, 659. There could be no presumption that the debt was paid in the face of the recital to the contrary that it was executed for the purpose of discharging the debt. There is but'one question remaining which we think is necessary to be considered. In support of the plea of five years limitation the defendants offered in evidence a tax deed by John P; Cox, tax collector of Hill County, to W. H. McDonald to 984 acres of land of the R. A.

Campbell survey, and describing the land by metes and bounds. In connection with this deed it appears that the county map of Hill County was offered to “show the locality of the George A. Campbell survey and surrounding surveys.” The deed was dated June 4,1878, and duly registered on the 2nd day of April, 1879. The yietition'was filed May 3, 1886.

The plaintiff objected to its introduction; “first, because it was void on its face, no authority appearing for the execution of the deed; second, because it does not support the plea of limitation, as the description fails to identify the land and is not sufficient to apprise the owner of the land of an invasion thereof by the grantee in the tax deed.” The court sustained the second objection and excluded the deed and the map. This is assigned as error. The assignment is not well made.

The deed shows on its face that the tract of land against which the assessment was made, and which was sold to pay said assessment, was a different tract of land from that sued for. The deed recites that the land assessed was 984 acres of the R. A. Campbell survey, and the land which the field notes describe as conveyed is a part of the said Campbell survey. The laud sued for is a part of the Geo. A. Campbell one-third league. We think there is no error in the judgment and that it should be affirmed. Affirmed. Adopted December 9, 1890.